People v. Matthews CA1/1 ( 2023 )

Filed 12/15/23 P. v. Matthews CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A167035
v.
SCOTT ANTHONY MATTHEWS, (Alameda County
Super. Ct. No. 21-CR-007963)
Defendant and Appellant.
Defendant Scott Anthony Matthews appeals from his sentence after
pleading no contest to sexual assault and second degree robbery. Defendant
contends the trial court erred in imposing consecutive sentences on both
counts under Penal Code1 section 654. The Attorney General concedes the
sentencing error and agrees a full resentencing is warranted. Because we
agree with both parties that the matter must be remanded for a full
resentencing, we need not reach defendant’s assertions that the court also
erred in imposing an upper term sentence. We will also order the matter
reassigned to a different judge on remand based on comments made by the
trial court related to defendant’s race during sentencing.
1 All statutory references are to the Penal Code unless otherwise
indicated.
I. BACKGROUND
We briefly summarize the facts as stated in the probation report.
On June 30, 2021, at approximately 12:30 p.m., the victim was walking
to the Oakland Coliseum Bay Area Rapid Transit (BART) station. While she
was walking, the victim saw defendant. The victim did not know defendant.
Defendant blocked her path of travel and said she could not pass unless she
gave him her panties.
When she refused and asked why he was doing this, defendant
responded, “ ‘Because I’m a violent person.’ ” Defendant then lunged at her,
grabbed her jacket with two hands, and took her to the ground where he
prevented her from moving. The victim grabbed defendant’s hair with one
hand and punched him with her other hand. Defendant choked the victim
with one hand while reaching under her dress with the other hand. He
pulled the back of the victim’s thong underwear, breaking the waistband,
then removed the triangular front portion of her underwear. In the process,
he digitally penetrated her labia but did not enter her vagina.
The victim used her cell phone to take pictures of defendant. He was
later arrested without incident and the victim positively identified him
during a field show-up.
An information filed on October 21, 2022 charged defendant with
sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)) and second
degree robbery (§ 211). The information further alleged as an aggravating
factor as to both counts that the crimes involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a high degree of
cruelty, viciousness, or callousness. (Cal. Rules of Court, rule 4.421(a)(1).)
2
On December 13, 2022, defendant waived his constitutional rights and
entered an open plea2 to both counts. He also admitted the crime involved
great violence, great bodily harm, threat of great bodily harm, or acts
disclosing a high degree of cruelty, viciousness, and callousness under
California Rules of Court, rule 4.421(a)(1). He was informed that the
maximum sentence was nine years and the parties stipulated to a factual
basis based on the preliminary hearing transcript. On January 13, 2023, the
trial court sentenced defendant to the upper term of eight years on count one,
plus one-third the midterm of one year on count two, for a total sentence of
nine years in state prison. Defendant timely appealed.
II. DISCUSSION
Defendant contends the trial court should have stayed his sentence on
one of the two convictions because the robbery and sexual assault were part
of the same course of conduct and motivated by the same intent and objective.
The Attorney General concedes the trial court erred because “[u]nder the
unique facts of this case, . . . the evidence demonstrates that the sexual
assault was incidental to the robbery, and it was motivated by the same
intent and objective.”
Section 654, subdivision (a), provides, “An act or omission that is
punishable in different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or omission be
punished under more than one provision.” “Whether a defendant may be
subjected to multiple punishment under section 654 requires a two-step
inquiry, because the statutory reference to an ‘act or omission’ may include
2 An open plea is one under which there is no promise about the nature
or duration of a defendant’s sentence. (People v. Henderson (2021)
67 Cal.App.5th 785, 788.)
3
not only a discrete physical act but also a course of conduct encompassing
several acts pursued with a single objective.” (People v. Corpening (2016)
2 Cal.5th 307, 311 (Corpening).) A court first considers whether the different
crimes of which the defendant was convicted “were completed by a ‘single
physical act.’ [Citation.] If so, the defendant may not be punished more than
once for that act. Only if [the court] conclude[s] that the case involves more
than a single act—i.e., a course of conduct—do[es it] then consider whether
that course of conduct reflects a single ‘ “intent and objective” ’ or multiple
intents and objectives.” (Ibid.)
Here, defendant committed one physical act—he forcefully removed the
victim’s underwear and while doing so, his finger made incidental contact
with her labia. Neither the crime of robbery nor sexual assault was
completed before the other. Because a single physical act simultaneously
accomplished the actus reus for both crimes, section 654 precluded multiple
punishment. (See Corpening, supra, 2 Cal.5th at pp. 313–315.)
Even if defendant’s acts constitute a course of conduct, however, we
agree with both parties that the evidence demonstrated defendant had only
one intent—to obtain the victim’s underwear. When she refused to give them
to him, he knocked her to the ground, choked her, and ripped her underwear
from her body. In doing so, he “digitally penetrated the victim’s labia but did
not enter her vagina.” He then fled without attempting any further sexual
contact. Thus, the digital penetration was incidental to his intent to steal her
underwear rather than an independent intent to commit sexual assault. (See
People v. Mitchell (2016) 4 Cal.App.5th 349, 354 [“where a defendant is
convicted of robbery and other crimes incidental to the robbery such as
assault, section 654 precludes punishment for both crimes”]; People v. Alvarez
(2009) 178 Cal.App.4th 999, 1006 [§ 654 applies when the sexual assault was
4
“either incidental to or the means by which another crime was
accomplished”].)
Under section 654, the trial court has discretion to choose which offense
will have a sentence imposed and which offense will have its sentence stayed,
irrespective of which offense carries the longer term. (§ 654, subd. (a); People
v. Aguayo (2022) 13 Cal.5th 974, 992, fn. 6.) Accordingly, we must remand
for the trial court to stay one of the two sentences imposed.
Both parties assert the matter must be remanded for a full
resentencing hearing and we agree. (People v. Buycks (2018) 5 Cal.5th 857,
893.) Because we must remand for a full resentencing, we need not address
defendant’s argument the trial court relied on an invalid aggravating factor
under the recently amended section 1170, subdivision (b)(2). As defendant
acknowledges, he will have an opportunity to contest any aggravating factors
on which the trial court relies in resentencing and argue for a sentence lesser
than the upper term. (Buycks, at p. 893.)
Finally, defendant asks this court to assign him to a different judge for
resentencing on remand to avoid the appearance of bias under Code of Civil
Procedure section 170.1, subdivision (c) and under the California Racial
Justice Act of 2020 (Stats. 2020, ch. 317, § 1; CRJA). Defendant argues that
under section 745, subdivision (a)(4)(B), the court may not impose a more
severe sentence based on defendant’s race or ethnicity, and contends the trial
court here impermissibly relied on defendant’s race in imposing the
maximum possible sentence.3
3 The Legislature recently amended section 745 to allow a defendant to
raise a claim under the CRJA on direct appeal based on the trial record or
seek a stay of the appeal and remand to file a motion in the trial court. (See
Assembly Bill No. 1118 (Reg. Sess. 2023–2024); Stats. 2023, ch. 464.)
Defendant does not raise a CRJA claim directly in this appeal. In any event,
5
At sentencing in this case, the following exchange occurred between the
court and defendant:
“[THE COURT]: If I could sentence you to more time, I would. This is
horrible. [The victim] can’t even walk down the street, go to work without
somebody acting a fool. [¶] And you’re African-American, aren’t you?
“THE DEFENDANT: I am.
“THE COURT: You’re Black, right?
“THE DEFENDANT: I am.
“THE COURT: Your mama is Black, right?
“THE DEFENDANT: She is.
“THE COURT: She’s Black. Would you do that to your mama?
“THE DEFENDANT: I have.
“THE COURT: I don’t feel sorry, so I’m going to sentence you to the
maximum.”
“At the request of a party or on its own motion an appellate court shall
consider whether in the interests of justice it should direct that further
proceedings be heard before a trial judge other than the judge whose
judgment or order was reviewed by the appellate court.” (Code Civ. Proc.,
§ 170.1, subd. (c).) Appellate courts must exercise the power to disqualify
sentencing judges “sparingly and only where the interests of justice require
it.” (People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562.)
We are troubled by the trial court’s comments at sentencing here,
which could be read to suggest that the trial court considered defendant’s
race as a factor in imposing the maximum sentence in this case. (See People
in light of our disposition remanding for a full resentencing and assigning the
matter to a different judge, we need not consider the potential impact of the
change in the law on this appeal.
6
v. Gulbrandsen, supra, 209 Cal.App.3d at p. 1562 [“Disqualification may be
necessary where the sentence of the original judge indicates an animus
inconsistent with judicial objectivity.”].) Under these circumstances, we
direct that, in the interests of justice, further proceedings be heard before a
different trial judge. (Code Civ. Proc., § 170.1. subd. (c); see, e.g., In re
Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1328 [appearance of bias
supported reassignment of judicial officer].) Our decision to reassign the
matter does not constitute a determination that the judge in this case
exhibited actual bias based on the limited record before us. (See, e.g., People
v. LaBlanc (2015) 238 Cal.App.4th 1059, 1079 [appellate court need not find
actual bias and may order disqualification when necessary to dispel the
appearance of bias].)
III. DISPOSITION
The sentence is vacated and the matter is remanded to the trial court
for a full resentencing. We express no opinion on how the trial court should
exercise its discretion at sentencing. On remand, the presiding judge of the
Alameda County Superior Court shall assign a different judge to conduct
further proceedings in this case.
7
MARGULIES, J.*
WE CONCUR:
HUMES, P. J.
BANKE, J.
A167035
People v. Matthews
* Retired Associate Justice of the Court of Appeal, First Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.